July 8, 2002

Private Enemy

It is June 2005. As chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy goes on a fact-finding mission to Guantanamo Bay, where he meets with Al Qaeda prisoners of war. Furious over Leahy's refusal to confirm federal judges, President George W. Bush plots revenge. When Leahy arrives at Washington Dulles International Airport, he is arrested by military police on the grounds that he has passed information to the enemy and is therefore an enemy combatant. Leahy is imprisoned at the Naval Station Brig at Norfolk, Virginia, and is told he will remain there until the president decides that the war on terrorism has ended. Leahy files a writ of habeas corpus in federal court, demanding the government provide evidence that he is an enemy combatant or release him. But a federal judge refuses to grant Leahy a hearing. The judge agrees with the Bush administration that once the president has determined a citizen is an enemy combatant, the decision can't be reviewed in any court.

The scenario is imaginary, but the legal claim is not. It appears in a remarkable brief filed by the Bush administration last week in the case of Yaser Hamdi, an American citizen seized in Afghanistan, transferred to Guantanamo Bay, and now being detained in Virginia as an enemy combatant. "[C]ourts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such," the administration writes. This position is not only legally unprecedented; it is unnecessary. No court would second-guess the administration's conclusion that Hamdi, who was seized on the battlefield after his Taliban unit was defeated, is an enemy combatant. But if the U.S. Court of Appeals for the Fourth Circuit agrees with the administration in the Hamdi case, it could set a precedent that would give the president unreviewable power to imprison citizens indefinitely and exclude them from the legal system during a war that may last for decades.

Why would the administration stake out such an unnecessarily extreme position? Here is one possibility: In an unpublished ruling, the judge in the John Walker Lindh case recently held that the FBI's interrogation of Hamdi contained information that might prove exculpatory for Lindh. Therefore, ruled the judge, Lindh's lawyers had a right to interview Hamdi--subject to the consent of Hamdi's lawyer Frank Dunham, the able federal public defender in Virginia. But Dunham can't give his consent without first meeting with Hamdi or at least being present during the interview. Perhaps for this reason, the government has tried to prevent Dunham from meeting with his client at all costs. As part of the same strategy, when a judge ordered that Dunham be allowed to meet with Hamdi to challenge his detention, the government persuaded the appellate court that since Dunham had never met Hamdi, he couldn't properly represent him. Dunham tried to escape this catch-22 by filing another action with the approval of Hamdi's father, who clearly has standing to authorize Dunham to represent his son's interests. Despite the father's efforts, however, the government has asked the appellate court to block Dunham from meeting with Hamdi once more.

Another possibility is that the government is trying to preserve its flexibility in cases involving the detention of other citizens, such as Jose Padilla, whom the government accuses of plotting to build a dirty bomb. Padilla's classification as an enemy combatant is more debatable than Hamdi's: He was seized at O'Hare International Airport; and because the government didn't have enough evidence to try him for conspiracy, it initially held him in New York as a material witness before calling him an enemy combatant and transferring him to military prison in South Carolina. The government may want to avoid sharing the facts that led to Padilla's designation as an enemy combatant because that would reveal too much about its intelligence sources. By arguing for a blanket rule that citizens can never challenge their enemy- combatant designation in federal court, the administration might also be trying to avoid a debate about whether the information in cases like Padilla's should be classified and what the standard of proof should be.

Whatever its reasons, the government's claim is legally unconvincing. The administration cites two cases on behalf of its position; but neither settles the question, because there was never a dispute about whether or not the prisoners were enemy combatants. During World War II an American citizen fighting with the Italian army was among the aliens captured on the battlefields of Sicily, and a federal court held that he could be detained in the United States as a prisoner of war. But since the court found that he was wearing an Italian army uniform, his status as an enemy combatant, unlike Padilla's, was never in question. In another case from World War II, the Supreme Court held that German soldiers who were captured in China in 1945, tried by an American military commission, and serving sentences in Germany couldn't have their convictions reviewed in the United States. The Court was concerned that giving enemy aliens captured abroad the right to demand a hearing in the United States would disrupt the war effort. But the same logic doesn't apply to a captive whom the government has chosen voluntarily to bring to the United States. In fact, Hamdi may have been transported from Guantanamo Bay to Virginia precisely because the government feared that, as a citizen, he might be able to demand a review of his detention in Guantanamo, which could expose the entire camp to scrutiny by federal courts.

Unlike enemy combatants in World War II, who clearly identified themselves by wearing uniforms, our new enemies willfully violate the laws of war, making it harder to determine who is a combatant and who is not. This should lead courts to give the president substantial deference in identifying the enemy within, but it also raises a real danger that individual citizens might be wrongly detained. The way to resolve this conflict isn't by preventing judges from reviewing the president's determinations but by ensuring that hearings are conducted in ways that preserve national security interests.

The standard of proof in these hearings should be as deferential to the president as possible. In fact, most judges would uphold the president's designation of a citizen as an enemy combatant if there is any colorable evidence to support the claim. In Hamdi's case, once the government establishes that he was caught red-handed on the battlefield in Afghanistan, the hearing might well be over.

But in the case of Padilla, where the government may have legitimate concerns about revealing its intelligence sources even to Padilla's lawyers, more sensitive hearings might be necessary. Furthermore, ordinary federal judges may not be trained to evaluate intelligence information; or, in their eagerness to defer to the military, they might water down the standards of proof that apply in ordinary civil cases. For this reason, Ruth Wedgwood of Yale Law School has argued that Congress could authorize the secret Foreign Intelligence Surveillance Act court to review all challenges to a citizen's designation as an enemy combatant. Hearings before this court are held outside the presence of the prisoner's lawyer, and the court could apply the same standard it applies in other foreign-intelligence surveillance cases, asking whether there is probable cause to believe that the accused is an enemy combatant.

In a forthcoming article in Constitutional Commentary, Jack Goldsmith and Cass R. Sunstein of the University of Chicago explore a paradox: Compared with Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt, they note, the Bush administration has diminished relatively few civil liberties. At the same time, opinionmakers such as The Washington Post and The New York Times have been far more critical of Bush's actions than they were of similar actions by FDR. One explanation, Goldsmith and Sunstein suggest, is that "the nation is now far less trusting of government, and far more solicitous of the accused, than it was sixty years ago." Another explanation, however, may have to do with the conduct of the administration itself. Having learned from Wilson's mistakes during World War I, Roosevelt went out of his way to give the appearance of caring about civil liberties. His attorney general, Francis Biddle, was a member of the ACLU; the administration didn't prosecute people who were critical of the war, as Wilson had, nor did it pursue the most aggressive legal claims in cases involving Nazi saboteurs. As a result, Roosevelt was treated far more tenderly than Wilson by this magazine and by others. By contrast, the Bush administration--while committing fewer actual abuses--has repeatedly asserted the most sweeping unilateral power to do whatever it likes in cases involving military tribunals and the detention of citizens. In addition to raising public suspicions, this risks creating bad legal precedents that could linger after the war is over.

The stakes in the Hamdi case are far greater than those presented by the recent debate about military tribunals. Indeed, the administration seems to have concluded that it doesn't need to try enemy combatants in military tribunals since it can detain them indefinitely instead. (The only advantage of a military trial as opposed to indefinite detention is the possibility of execution, but that is almost certainly outweighed by the risk of not being able to prove the case.) Now that citizens arrested in the United States may be detained indefinitely during the course of an undeclared war that could last decades, it would be politically--as well as legally--wise for the administration to seek Congress's support, which would almost certainly be granted. Together, the president and Congress should draft specific rules governing how long a citizen can be detained after being designated an enemy combatant and when a military review board must determine whether he is likely to be dangerous in the future. The procedure could be modeled on the process apparently going on now in Guantanamo Bay to decide whether to repatriate prisoners. Although the president may have the raw legal power to detain citizens indefinitely as long as their status as enemy combatants is confirmed by courts, he would be on far more solid political ground if he enlisted the support of Congress.

"The masses of any people, however intelligent, are very little moved by abstract principles of humanity and justice, until those principles are interpreted for them by the stinging commentary of some infringement upon their own rights," the critic James Russell Lowell wrote in an 1884 essay on Lincoln and civil liberties. In the short term, in fact, President Bush's detention of citizens may provoke little more public protest than his detention of aliens. But after the war is over, the legal precedents the administration is trying to establish will be seen as unnecessary as well as vulnerable to abuse. By rejecting this ill-advised claim, the federal appeals court in Virginia can give the president all the power he needs, while saving his administration from its worst impulses.

Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.